Security Towing Co.

National Labor Relations Board - Board Decisions

Dec 16, 1964

150 N.L.R.B. 381 (N.L.R.B. 1964)

SECURITY TOWING COMPANY 381
This notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 706 Federal Office Building, 500 Zack Street, Tampa, Florida,
Telephone No. 228-7711. 1
Security Towing Company and National Maritime Union of
America, AFL-CIO. Case No. 14-CA-3139. December 16, 1964
DECISION AND ORDER
On March 31,1964, Trial Examiner Stanley Gilbert issued his Deci-
sion in the above-entitled proceeding,, finding that the Respondent had
not engaged in the unfair labor practices alleged in the complaint,
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
General Counsel and the Charging Party filed exceptions, with sup-
porting briefs, to the Decision; and the Respondent filed exceptions
to the Trial Examiner's failure to make certain findings of fact and
conclusions of law, together with a brief in support of the exceptions
and the Decision. The Charging Party filed a brief in answer to the
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Leedom and Jenkins].
The Board has reviewed the rulings' of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board 'has considered the Decision
and the entire record in the case; including the exceptions and briefs,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.'
[The Board dismissed the compaint.]
' As the record, exceptions, and briefs adequately present the issues and the positions
of the parties , the request of the Charging Party for oral argument is hereby denied.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed August 14, 1963 , by National Maritime Union of America,
AFL-CIO (hereinafter referred to as NMU), the complaint was issued October 21,
1963 . The complaint , as amended ,' alleges that Security Towing Company (herein-
'The complaint was amended by adding the names George H. Courtney , Robert Lee
Fowler, Wayne E. Cox, and Bill Lawrence to each of the subparagraphs in paragraph VI
of the complaint. At the conclusion of the General Counsel's case, General Counsel was
given leave to withdraw the allegation in subparagraph ( b) of paragraph V of the com-
plaint , there being no evidence in support of said allegation.
150 NLRB No. 23.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
n
after referred to as Respondent or Company) interrogated its employees and laid off
11 of its employees in violation of Section 8(a)(1) and (3) of the Act. In its answer,
as amended ,2 Respondent denied the alleged violations of the Act.
Pursuant to due notice , a hearing was held in this matter in St. Louis, Missouri, on
December 3, 4, 5, and 6, 1963, before Trial Examiner Stanley Gilbert. At the close
of the hearing , oral argument was waived . Within the time, designated therefor, briefs
were submitted by all of the parties.
Upon the entire record herein and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Mississippi corporation with its principal place of business- in
Greenville, Mississippi, and was at all times material herein engaged in the business
of providing tug and towboat service for the transportation of commodities. Respond-
ent annually derives in excess of $50,000 gross revenue from the operation of its tug
and towboat services in transporting goods, wares, merchandise, and commodities in
interstate commerce between points in the States of Illinois, Missouri, Tennessee,
Mississippi, Louisiana, and other States bordering upon the Mississippi River. As is
conceded by Respondent, it is now, and has been at all times material herein, an em-
ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is conceded by Respondent , NMU is, and has been at all times material herein,
a labor organization within the meaning of Section 2 (5) of the Act.
Although there are frequent references in the record to the Marine Officers Associa-
tion (hereinafter referred to as MOA), it is not a party to this proceeding and it is
not necessary to make a finding as to whether it is a labor organization within the
meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The findings of fact set forth hereinbelow are not in dispute except in those instances
which are indicated.
Respondent owns and operates the MV Tennessee, its only vessel: Its main opera-
tion is the towing of grain and liquid barges, primarily from St. Louis to New Orleans.
The vessel normally carries on board a crew of 11 to 13 men, 5 or 6 of whom are
officers and the remainder unlicensed personnel.
At Memphis, Tennessee, on August 7, 1963, during its trip upstream the vessel's
command was transferred to Capt. Lee C. Brazie , who relieved a Captain Neighbors.
The crew on hand was then comprised of the following persons in addition to Brazie:
a pilot (Tate), a chief engineer (Mann), a relief chief engineer (Wiseman), a mate
(Sherman ), four deckhands ( Sims, Jones, Millerd, and Davis), two oilers (Hayes and
McCallie), and a cook (Lamay). The vessel arrived at St. Louis on August 11,
delivered the barges it had in tow, and picked up its southbound tow by evening of
that day.
The record discloses that as of August 11 all of the unlicensed personnel on board
the vessel had signed pledge cards for the NMU. It further appears that Brazie and
Tate were members of MOA. Apparently MOA had requested the Respondent to
grant it recognition as the collective-bargaining representative of the Tennessee's
licensed personnel. On the morning of August 11, while the vessel was still on its way
upstream, Paul Steinberg, an MOA official, boarded the vessel and told Brazie that
the MOA planned to "tie up" the boat in St. Louis in support of its request for
recognition.
About 7:35 p.m. on August 11, 1963 , Brazie received a message from MOA telling
him to "tie up" the vessel. Brazie confirmed receipt of the message, and took the step
of ordering an additional mooring line . He did not, however, inform Respondent of
his decision to tie up the boat. Respondent learned of MOA's action by telegram from
that organization which the Company received about 8:35 that evening. ' About
9:10 p.m. Brazie received a call by mobile telephone from John Kitch, Respond-
ent's vice president, who was in Greenville, Mississippi. Kitch asked him where he
was and Brazie informed him that he was at the St. Louis landing. Kitch asked him
when he planned to get underway and he replied that he did not know because he had
received a message from MOA to hold the vessel in St. Louis. Kitch ordered him to
get underway and he refused. Kitch said that is a "direct order," and Brazie replied
that he would not comply with it. Kitch then asked to talk to the pilot, Captain Tate.
2 The answer was amended to respond to amendments in the complaint.
SECURITY TOWING COMPANY 383
Brazie sent for Tate who, when he arrived in the pilothouse, held a similar conversa-
tion with Kitch in which Tate also refused to take the tow downstream. Kitch then
asked to talk to Brazie and told him to "stand by."
Kitch and Russell Flowers, Respondent's secretary and treasurer, chartered a plane
to fly from 'Greenville to St. Louis, where they arrived about 1 a.m. on August 12.
They experienced some difficulty in getting transportation to the Tennessee, but finally
secured a boat about 2 a.m., and arrived at the Tennessee about 3:15 a.m. Consider-
able testimony was introduced into the record with respect to the activities aboard the
Tennessee after their arrival and until their departure about 3:50 a.m. There is con-
flict in the testimony as to the sequence of events, where certain conversations took
place, and as to whether certain statements were made. The conflicts material to the
issues in this case relate to whether Flowers interrogated two of the unlicensed crew-
men (as they testified) and whether Kitch ordered the entire crew off the vessel or gave
them a choice of working or getting off the vessel.
A. The interrogation
Norris Sims testified that he had the following conversation with Flowers:
Well, he asked me, was I a part of this, and I said a part of what, and he asked
me if I signed a MOA card and I told'him that I wasn't either a master, mate or
pilot, and he said , "Well, did you sign any kind of a card?" I told him, "Yes, sir,
we all signed pledge cards."
Q. Did you say anything else?
A. •He said, all this, before I told him we all signed cards, he asked me if I
signed the master, mate and pilot card and I told him no and he said, "Well, let's
go back inside and sit down and talk this thing over," and we went back inside and
he asked me if I signed any kind of a card and I told him I signed a pledge card
and that we all signed pledge cards.
Q. When you went back inside , were any other people present?
A. Bobby Jones was present.
Q. When you say inside, inside where?
A. We went from the head of the board deck, which was the second floor,
inside the crew's lounge, inside the board deck.
Q. So, at this time there was just you, Bobby Jones, and Mr. Flowers present?
A. Yes, sir, and later on in the conversation though, Mr. Louis McCallie did
appear.
Q. All right. Now,,was there anything else said that you recall?
A. He told me that he asked me what we were dissatisfied with.
Q. Who is be?
A. Russell Flowers.
Q. What did you answer?
A. Yes, sir, I told him that we were dissatisfied with the hours we were working
and the wages we were drawing and I named off two or three different items.
Q. Did he answer you?
A. He said, "I see there is no need to argue with you."
Flowers categorically denied that he asked Sims "if he had signed any kind of union'
card"; denied that he had asked him "why he was dissatisfied"; and denied that he
ever had any conversation'with Sims "concerning the union at all."
Rodger Hayes, an oiler, testified that he saw Flowers standing in the engineroom
talking to the engineer and that Flowers turned to him and asked him if he had
"signed up too" and that he replied in the affirmative. Flowers testified that he did
not ask Hayes "anything of that nature" and that he "didn't see Mr. Hayes in the
engineroom ." Neither Jones nor McCallie was,called to testify as to the first incident
of interrogation and the engineer was not called to testify with respect to the second
incident.
Based upon my observation of the witnesses and the failure of General Counsel to
call as witnesses the persons who Sims and Hayes testified were present during the
interrogation to rebut Flowers' denial, the testimony of Sims and Hayes is not credited.
Therefore, it is concluded that General Counsel has not established by a preponderance
of the evidence that Flowers did engage in interrogation of either of the two crewmen.3
s As indicated hereinabove, although there was an allegation that Kitch also engaged
in interrogation, no evidence was introduced in support thereof and the allegation was
withdrawn at the conclusion of General Counsel's case.
775-692-65-vol. 150-26
384' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Re ordering crew of the boat
With respect to the issue of whether or not the crew was given the alternative of,
working or getting off the boat , there is contradictory testimony as to what statements
were made by Kitch on three occasions : first, to Brazie and Tate; second , to some of
the unlicensed personnel below deck; and the third , to most of the crew in the pilot-
house shortly before Kitch and Flowers left the vessel. _
Brazie, Kitch, and Flowers testified as to the first occasion. Brazie testified that
Kitch and Flowers came to his stateroom while be was getting dressed and told him
that the entire crew would have to get off the . boat; and that , when he finished dressing,
they proceeded to the pilothouse where Kitch told him, apparently in the presence of
Tate, to round up the crew and get them off the boat.
Kitch testified that he did not go to Brazie's room , but went to the pilothouse and
found Tate there; that he asked Tate to get Brazie ; that , when the two of them
returned, he stated to them that he was giving them a direct order to get underway
which they refused to do; that he told Brazie to get off the boat if he was not going
to work; that he then told Tate to get the boat going and that Tate refused; that he
then told Tate to get off the boat; and that he told Brazie to get the crew so that he
could talk to them. Flowers' testimony was corroborative of that of Kitch. Brazie
on rebuttal denied that Kitch said to him or to other members of the crew "if we are
not going to work , we are going to have to get off the boat ." Tate was not called to
testify.
The second occasion with respect to which there is contradictory testimony (as to
whether Kitch ordered the crew off the boat or gave them the alternative of working)
was when Brazie and Kitch went below deck. There is much confusion in the record
as to what occurred, but essentially Brazie, Norris Sims, and Rodger Hayes testified
that when Kitch spoke to some of the unlicensed crew members below,deck, he
ordered them off the boat and did not give them the.alternative of working. Kitch
testified that he stated to the unlicensed personnel below deck , "If we are not going
to work, we will have to get off the boat because we have to get this tow underway."
Kitch further testified that the men made no comment , hesitated for a while, and
then walked back to their quarters. Brazie testified that one of the crew members
asked, "Will we get our money," and he replied that the Respondent "would have to
pay all of our salaries and transportation when we get off the boat"; that Kitch offered
to pay the transportation and mail the salary checks; and that he replied, "No, you
will pay salary and transportation for everybody if we get off."
The third occasion was when Brazie and Kitch returned to the pilothouse where
most of the crew assembled . While Brazie and Sims did not testify as to any state-
ments made by Kitch at that point with respect to getting off the boat, they did testify
that they never heard Kitch offer the officers or unlicensed personnel the alternative
of working or getting off the boat, and that Brazie insisted that they would have to
be paid their wages and transportation home before they would get off the boat.
They, as well as Hayes, further testified that Kitch said that, if necessary, he would
obtain a Federal marshal to get them off the boat. Hayes and Sims .also testified
that prior to the time Brazie and Kitch arrived in the pilothouse , Flowers was asked
by one of the crew members if they had to get off the boat and he said "yes," and
that one of the crew members stated that he wanted 'his money and transportation
home "if I am going to have to get off."
On the other hand, Kitch testified as follows to what he stated to. the assembled
crew in the pilothouse:
Well, I again said that we have to get this tow under way. If you are not
going to work, we are going to have to put you off because we can't, we have to
have this tow en route and we have to have this boat moving. We had financial
obligations to make and we have customers to be satisfied , and we are responsi-
ble for this tow.
He also testified to a discussion about payment of their wages and transportation;
that Brazie said, "We are not going to get off the boat until we get our pay to date
and our transportation "; and that he told them , "we would make arrangements to get
that done and we would have to get off the boat to finish that and complete that and
to get the men off the boat to get it on its way" and that "if it took legal means to do
it, that is what we would have to do."
It is essentially General Counsel's position that the alternative of working or get-
ting off the boat was not offered to the crew, but that Respondent ordered the crew
off the boat in order to get rid of them because of their adherence to the Union. In
support of this, to show Respondent's union animus, General Counsel introduced
testimony of Sims that while he was working as a junior dispatcher in Respondent's
SECURITY TOWING COMPANY 385
office sometime in July, he overheard Kitch say to Flowers, "Before his boat would
run union, he would tie it up." While Flowers testified that he never heard Kitch
make such a statement, Kitch admitted that in discussing Respondent's finances with
Flowers, he might have said something to that effect because they could not afford
to pay union wages. Testimony by Brazie was also introduced that, about July 2,
when he was talking to Kitch aboard the vessel, he mentioned that he was a member
of the MOA, had helped organize it, and intended to continue as a member; that he
further related to Kitch that the previous year he was "fired off another boat .. .
because I was a member of the Union"; that Kitch replied, "We don't intend to oper-
ate this boat as a union boat either" and that he "couldn' t see" Brazie's being fired
because he was a member of the MOA. However, it is undisputed that as of 9:15
p.m. August 11, Kitch, although he had been advised that the officers on board the
Tennessee had been organized by the MOA, ordered them to proceed downstream,
not to get off the boat. While there is no showing that Respondent had knowledge
of the fact that the unlicensed crewmen had signed pledge cards for the NMU, Kitch
candidly admitted that, after he boarded the vessel at 3:15 a.m. on the following day,
he suspected that the unlicensed crewmen had signed up with some union.
The testimony of Kitch and Flowers that Kitch did offer the alternative of working
or getting off the boat is credited .4 The crediting of Kitch's and Flowers' testimony
is predicated not only on my observation of the witnesses, but also because it is
consistent with Respondent's urgent efforts to get the boat underway a few hours
earlier, as revealed by the testimony of both Kitch and Brazie. It does not appear
reasonable that Kitch and Flowers would have rushed to St. Louis and boarded the
vessel at the early morning hour they did, merely for the purpose of ordering the
crew off the vessel. Particularly does it seem unreasonable to conclude that they
went aboard to remove the entire crew, in view of the fact that they had not made
arrangements for a replacement crew to take over in order to maintain, as a mini-
mum, the security of the Tennessee and its tow or to take the boat downstream which
it appears they were endeavoring to accomplish. There is nothing in the record
which would indicate any reason why Kitch should have altered his determination to
have the crew on board take the vessel downstream after talking to Brazie and Tate
some 6 hours earlier (at which time, it is undisputed, he had ordered them to get
underway). It appears that there was valuable cargo aboard the tow and Respondent
had time commitments for its delivery. It is concluded that Kitch's and Flowers' visit
aboard the vessel between 3:15 and 3:50 a.m. on August 12 was for the purpose of
getting the officers and crew to proceed downstream with the tow and that Kitch did
state to the crew that they should either "work or get off" the boat.
Respondent's representatives returned to the vessel in the early afternoon of
August 13 with a replacement crew which had been assembled by that time. After
some bickering with Brazie with respect to payment by Respondent of salaries up
to August 13 and of first-class transportation for the members of the crew, Respond-
ent capitulated to Brazie's demands. The crew then disembarked.
There is considerable testimony in the record as to whether or not the unlicensed
crew members continued to perform their duties between the period of early morning
of August 12 and the time they left the boat on August 13. However, this line of
testimony does not appear to be material to the issue before me. The issue is essen-
tially whether or not the unlicensed personnel were ordered off the boat on the morn-
ing of August 12 because of their adherence to the Union. It is concluded that the
General Counsel has not proved by a preponderance of the evidence that the crew
was ordered off the boat-for that reason. By the crewmen's failure to make any
comment when order to work or get off the boat, except Captain Brazie's insistence
on their behalf that they be paid transportation and salaries before they, leave,
Respondent had reasonable grounds to believe that both the officers and the unlicensed
crewmen did not intend to operate the vessel and it appears that they were ordered
off the boat because of this belief. This is supported by testimony of Brazie that he
did discuss with all of the unlicensed crewmen the plan to tie up the vessel in
St. Louis. Further, in reply to the question of whether he asked the unlicensed per-
sonnel "not to work, that is, to tie up the boat," Brazie testified:
No, I told them that they were tying up the boat but that didn't mean that they
were not to work, they were to do their routine work as if we were -under way.
It appears reasonable to conclude that Brazie had persuaded the unlicensed crewmen
to aid MOA's attempt to tie up the boat. This would explain Brazie's acting as their
* By "working," it is clear from Kitch's and Flowers' testimony, Kitch indicated that
he meant taking the boat downstream, not merely the routine tasks required while the
boat was tied up.
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spokesman and insisting upon payment of wages and transportation, rather than any
indication from the unlicensed crewmen of a willingness to take the tow downstream,
in response to Kitch's "work or get off" ultimatum.
In reaching the conclusion that Kitch ordered the crew off the boat, not because
of their union adherence but because of the belief that they were not willing to take
the boat downstream, the testimony of George Courtney is not overlooked as to a
telephone conversation he had with Kitch on August 16. During this conversation
Courtney, who claimed he was on "shore leave" at the time, testified as follows:
Well, when I called I asked to go back to work. He said, well, that he was
having a little trouble right then, that the boys had joined a union down in New
Orleans and he had to go up to St. Louis and fire them. I said that I was sorry
to hear that and he told me to call him back in about three days and they would
have something worked out by then that they would let me know.
Q. Do you recall anything else in that telephone conversation?
A. Yes, sir. He said if it hadn't been for Norris Sims and Captain Neighbors
he wouldn't be having the trouble that he had then.
Although Kitch was questioned about the conversation, in testifying as to what was
said , he made no reference to making any statement about the action he took in
St. Louis with respect to the termination of the crew's employment. However, he
was not questioned as to whether he made the statement to which Courtney testified
with respect to the discharge of the crew. He was asked, however, about the refer-
ence to Sims arid Neighbors and categorically denied Courtney's testimony with
respect thereto. There is no showing that Respondent could have known that the
crew had signed the pledge cards in New Orleans, and while it would appear that
Kitch did make some reference to union trouble in St. Louis and that he had to fire
the crew, it does not appear appropriate to conclude from Courtney's testimony,
considered in the context of the record, that Kitch admitted to Courtney that he
discharged the crew because of their adherence to the Union.
C. Re Courtney, Fowler, Cox, and Lawrence 5
George H. Courtney, Robert Lee Fowler, Wayne E. Cox, and Bill Lawrence had,
'prior to the trip upstream from New Orleans which terminated August 11 in St. Louis,
served as members of the Tennessee's crew, but were not on board during said trip.
However, the record is far from clear as to what their status was by reason of having
previously served on the Tennessee. Kitch testified that the Respondent maintained
a "waiting list or standby list as far as deckhands or any other personnel are con-
cerned" in the event of a need of replacement.
Little, if anything, is disclosed in the record as to the status of Lawrence and Cox
after they left the Tennessee. There is a reference to Lawrence having left the vessel
to return to school. Courtney testified that he left the vessel for "shore leave" about
July 29, and that it was "his understanding" that he had "15 days off" according to
the "normal procedure." It does not appear that the record will support a finding
that such a normal procedure, or any "normal procedure," existed, in view of
Kitch's testimony as to maintaining a waiting or standby list and the action which
Courtney and Fowler testified to taking to determine when the Respondent could
utilize their services. Fowler testified that he started to work for Respondent on
July 29, 1963, but left the Tennessee a few days later, on August 3, to go to the hos-
pital. Both he and Courtney testified that when they asked about rejoining the vessel,
they were told their services were not immediately needed and to check back later.
In Fowler's case his first inquiry was prior to August 11. Courtney further testified
that when he called Kitch back the latter part of August, Kitch told him he had hired
another crew and could not use him. The record cannot support a conclusion that
any one of the four above-named men was immediately available to join the replace-
ment crew that Respondent apparently assembled on August 12, and that Respondent
would have selected them, or any of them, in preference to those who were selected
for the replacement crew, but for a discriminatory motive. The record does,not dis-
close when, if ever, Respondent had a subsequent need of the services of any of the
four above-named men. Therefore, 'although it appears that none of the four men
was ever notified by Respondent that it could use him, it is concluded that General
Counsel has not established by a preponderance of the evidence that the failure to
so notify them was discriminatorily motivated.
6 As indicated above, by amendment of the complaint these names were added to the
allegations of unlawful layoff.
IBEW , LOCAL UNION 323 , AFL-CIO 387
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. General Counsel has failed to sustain the burden of proof that the Respondent
has violated Section 8 (a)(1) and (3) of the Act, as alleged in the complaint.
RECOMMENDED ORDER
The complaint should be, and is hereby , dismissed in its entirety.
International Brotherhood of Electrical Workers, Local Union
323, AFL-CIO and William E. Pedlowe, d/b/a Pedlowe Elec-
tric. Case No. A0-81. December 16, 1961.
ADVISORY OPINION
This is a petition filed on September 18, 1964, by International
Brotherhood of Electrical Workers, Local Union 323, AFL-CIO,
herein called the Petitioner, for an Advisory Opinion in conformity
with Sections 102.98 and 102.99 of the National Labor Relations
Board 's Rules and Regulations , Series 8, as amended. Thereafter,
on November 16, 1964, the Petitioner filed an affidavit in support of
its petition.
In pertinent part , the petition and affidavit allege as follows :
1. On August 17, 1964, William E. Pedlowe , d/b/a Pedlowe Elec-
tric , herein called the Employer , W. W. Arnold Construction Co. Inc.,
herein called Arnold , and Netto Construction, Inc., herein called
Netto, filed an amended complaint for injunction against the Peti-
tioner in the Circuit Court of the Ninth Judicial Circuit of Florida,
in and for St. Lucie County , Florida, docketed as Case No. 8287-E.
The complaint alleges that the Petitioner picketed the Employer at
two construction jobs in St. Lucie County where Arnold and Netto
were the general contractors and where the Employer was engaged
in performing electrical work. It also alleges that the Petitioner's
picketing constituted "unlawful secondary boycotts," causing the
employees of Arnold and Netto , secondary employers, to stop work.
On August 18, 1964, the State court granted a formal temporary
injunction.
2. The Employer is an electrical contractor in Fort Pierce, Flor-
ida. The Petitioner 's attorney alleges, on information and belief,
that during the past 12 months the Employer purchased from local
suppliers electrical material manufactured outside the State of Flor-
ida in the amount of $89,300, of which $43,800 was for the Arnold
and Netto jobs while the balance of $45 ,500 was for other jobs in
Fort Pierce, Florida.
150 NLRB No. 13.